A hearing was held at the High Court on Wednesday October 23rd 2019 on the Computer Misuse and Cybercrimes Case which was brought to the court on 29th May 2019 by the Bloggers Association of Kenya (BAKE).

In its petition, BAKE cited that the law infringes on fundamental freedoms and limits various rights as guaranteed by the constitution. It is the Association’s contention that 26 sections of the law threaten the freedom of opinion, freedom of expression, freedom of the media, freedom and security of the person, right to privacy, right to property and the right to a fair hearing.

The sections in contention are 5, 16, 17, 22, 23, 24, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 48, 49, 50, 51, 52 & 53. In May 2018, BAKE was granted an injunction suspending the 26 sections, and this has remained in force to date.

The hearing, which was heard before Justice James Makau, involved BAKE, the Attorney-General(AG), the Speaker of the National Assembly, the Inspector-General of Police (IG) and the Director of Public Prosecution (DPP), The Kenya Union of Journalists (KUJ), Lawyers Society of Kenya (LSK) and Article 19.  BAKE has sued the AG, IG, DPP and the Speaker of the National Assembly in the case and KUJ, LSK and Article 19 are enjoined as interested parties.

In her submissions, BAKE  lawyer, Ms. Mercy Mutemi, asked the court to determine whether the 26 sections of the provisions within the disputed law, were indeed unconstitutional and denied, infringe and threatened freedom of expression, media, and persons besides the right to privacy, property and a fair hearing, as enshrined in the constitution of Kenya.

She argued that some of the provisions had led to the arrest of bloggers and content creators in the online space and in these instances the government has presumed it owned the truth and any other opinion was false. She further argued that the purpose of coming up with a section criminalizing fake news was unconstitutional, and an effect to muzzle opinions and quiet discordance to the government, as the legislators themselves were the biggest beneficiaries of fake news.

“Freedom of expression is the backbone of democracy and the enabler of all other rights, begging the question, why the government would want to regulate fake news,” she argued.

BAKE asked the court to declare the 26 sections unconstitutional. They also noted that the law contained sections that had been declared unconstitutional and had, through this law, been reintroduced.

In their reply, the IG and AG, represented by Lawyers James Gondi and Bridgitte Ndong argued that BAKE were ‘fighting for their livelihoods’ and they were living a “utopia that did not exist” He further argued that a silent majority of Kenyans were victims of certain characters in the online space and they would continue to suffer if the space was not regulated. He added that the petitioner had “fundamentally misread the constitution and had issues with it”.

He also reiterated that article 118 of the constitution doesn’t make the legislation subject to the people. He added that “The people can not micromanage the sovereign ability of parliament to legislate under the guise of public participation.”  

Following the conclusion of the hearing, Justice Makau said he will deliver a ruling on the Cybercrimes case on 30th January 2020.

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